Impossible: The Case Against Lee Harvey Oswald (18 page)

A similar contradiction was found with some extremely incriminating evidence, a green button. However, like many other pieces of evidence in this case (like a hatchet sheath), there was more to the story (
Cooper
at 5452; emphasis supplied):

Deputies discovered a green, blood-stained button near the closet in [the bedroom where Cooper was hiding out]. It resembled buttons found on certain “camp jackets” issued at CIM. The blood on the button was type A, consistent with Cooper and Doug Ryen. The green button was discovered under the same suspicious circumstances as the hatchet sheath, strongly suggesting it was planted in the . . . bedroom after Cooper had become a suspect. Further, its color showed that it came from a
green
prison-issued jacket. Uncontradicted evidence at trial showed that Cooper was wearing a
brown
or tan prison-issued jacket when he escaped.

The significance of what appeared to be numerous examples of manufactured evidence was pointed out by Judge Fletcher (
Cooper
at 5454):

Cooper claims that the State presented false evidence at trial, in violation of
Mooney v. Holohan
, 294 U.S. 103 (1935), and
Napue v. Illinois
, 360 U.S. 264 (1959). Second, Cooper claims that the State failed to reveal exculpatory evidence, in violation of
Brady v. Maryland
, 373 U.S. 83 (1963). Under both claims, Cooper claims actual innocence under
Schlup v. Delo
, 513 U.S. 298 (1995).

Unfortunately, Judge Fletcher was only writing a dissent. The Circuit Court of Appeals voted to uphold the conviction, and the Supreme Court refused to hear an appeal from that decision.
5

Let’s wind up this discussion of after-the-fact manufacturing of evidence with one final example, from
Ricciuti v. N.Y.C. Transit Authority
(124 F.3d 123 at 126; August 21, 1997). This case, whose subject matter was a bias-related assault by Alfred and Daniel Ricciuti on African-American NYC corrections officer Harlice Watson, was centered around a false confession by Alfred Ricciuti (after an arrest by officer Henry Lopez) to Lieutenant Robert Wheeler, a confession contained in an
unsigned
memorandum (emphasis supplied):

A key piece of evidence in the investigation was a statement contained in an unsigned memorandum typed on Transit Authority letterhead. That memorandum reads:

Lt. Wheeler III interviewed Deft. # 1 [Alfred Ricciuti] at 1725hrs. at District 11.

Deft. states that “I was walking down the street and I bumped into this nigger.” “I said I was sorry but I was a little drunk and I don’t back down from anybody.” “I hit the man and the man punched me back so I hit this guy again and the man hits me and knocks me down.”
. . .
“I’m not a rowdy guy but I’m not afraid of anyone, even if they have a gun.”
. . .

The statement contained in this memorandum found its way verbatim into several subsequent investigation reports prepared in connection with the bias investigation, and apparently based largely on this statement, the assault was classified as bias-related.

The Ricciutis insist this “confession” was fabricated by Lt. Wheeler
. Alfred Ricciuti denies ever making a statement to Lt. Wheeler, and Daniel Ricciuti, who swears he was in his uncle’s presence the entire time, avers that no such statement was ever made. Officer Lopez admitted in his deposition that he would have made a notation in his notebook had such a statement been made in his presence, but there was no such notation. Although the statement “admits” Alfred Ricciuti was “a little drunk,” none of Officer Lopez’s arrest notes indicate that either of the Ricciutis was intoxicated. Both plaintiffs vehemently deny uttering any racial epithets at any time.

The court determined that this was a
false confession
, and noted the constitutional issues (124 F3rd at 130; emphasis supplied):

This argument — an ill-conceived attempt to erect a legal barricade to shield police officials from liability — is built on the most fragile of foundations; it is based on an incorrect analysis of the law and at the same time betrays a grave misunderstanding of those responsibilities which the police must have toward the citizenry in an open and free society.
No arrest, no matter how lawful or objectively reasonable, gives an arresting officer or his fellow officers license to deliberately manufacture false evidence against an arrestee. To hold that police officers, having lawfully arrested a suspect, are then free to fabricate false confessions at will, would make a mockery of the notion that Americans enjoy the protection of due process of the law and fundamental justice. Like a prosecutor’s knowing use of false evidence to obtain a tainted conviction, a police officer’s fabrication and forwarding to prosecutors of known false evidence works an unacceptable “corruption of the truth-seeking function of the trial process.”
United States v. Agurs
, 427 U.S. 97, 104, 49 L. Ed. 2d 342, 96 S. Ct. 2392 (1976);
Giglio v. United States
, 405 U.S. 150, 153, 31 L. Ed. 2d 104, 92 S. Ct. 763 (1972);
Mooney v. Holohan
, 294 U.S. 103, 112, 79 L. Ed. 791, 55 S. Ct. 340 (1935).

When a police officer creates false information likely to influence a jury’s decision and forwards that information to prosecutors, he violates the accused’s constitutional right to a fair trial,
and the harm occasioned by such an unconscionable action is redressable in an action for damages under 42 U.S.C. § 1983.
United States ex rel Moore v. Koelzer
, 457 F.2d 892, 893-94 (3d Cir. 1972); see also
Smith v. Springer
, 859 F.2d 31, 34 (7th Cir. 1988);
Geter v. Fortenberry
, 849 F.2d 1550, 1559 (5th Cir. 1988).
Here, a reasonable jury could find, based on the evidence, that defendants Lopez and Wheeler violated the plaintiffs’ clearly established constitutional rights by conspiring to fabricate and forward to prosecutors a known false confession almost certain to influence a jury’s verdict.

We have now seen several examples of reality manufactured by the government after the fact. Just isolated incidents? Only a few bad apples? I guess that would depend on how you define “few.” In any event, these “few” are only a few examples of a much larger problem. If you want to see how pervasive this problem is, the small sampling of law review articles below related to the topic will give an indication of its depth. The interested reader is referred to these articles, and the many cases and articles to which they subsequently refer:

• Rodney Uphoff, “Convicting The Innocent: Aberration Or Systemic Problem?”, 2006
  Wis. L. Rev.
  739 (2006).
  
• Simon A. Cole, “Forensics Symposium: The Use And Misuse Of Forensic Evidence; Fingerprinting: The First Junk Science?,” 28
  Okla. City U.L. Rev.
  73 (2003).
  
• Tamara F. Lawson, “Can Fingerprints Lie?: Re-Weighing Fingerprint Evidence In Criminal Jury Trials,” 31
  Am. J. Crim. L.
  1 (2003).
  
• Richard H. Underwood, “Perjury: An Anthology,” 13
  Ariz. J. Int’l & Comp. Law
  307 (1996).
  
• Steven P. Ragland, “Using The Master’s Tools: Fighting Persistent Police Misconduct With Civil Rico,” 51
  Am. U.L. Rev.
  139 (2001).
  
• Richard A. Leo, Steven A. Drizin, Peter J. Neufeld, Bradley R. Hall & Amy Vatner, “Bringing Reliability Back In: False Confessions And Legal Safeguards In The Twenty-First Century,” 2006
  Wis. L. Rev.
  479 (2006).
  
• Mitchell P. Schwartz, “Compensating Victims of Police-Fabricated Confessions,” 70
  U. Chi. L. Rev.
  1119 (2003).
  
• Gabriel J. Chin, Scott C. Wells, “The “Blue Wall Of Silence” As Evidence Of Bias And Motive To Lie: A New Approach To Police Perjury,” 59
  U. Pitt. L. Rev.
  233 (1998).
  
• Jeffrey L. Kirchmeier, Stephen R. Greenwald, Harold Reynolds, and Jonathan Sussman, “Vigilante Justice: Prosecutor Misconduct In Capital Cases,” 55
  Wayne L. Rev.
  1327 (2009).
  
• “Prosecutors Must Disclose Exculpatory Information When The Net Effect Of The Suppressed Evidence Makes It Reasonably Probable That Disclosure Would Have Produced A Different Result -
  Kyles v. Whitley, 115 S. Ct.
  1555 (1995),” 26
  Seton Hall L. Rev.
  832 (1996).
  
• Nadia Soree, “When the Innocent Speak: False Confessions, Constitutional Safeguards, and the Role Of Expert Testimony,” 32
  Am. J. Crim. L.
  191 (2005).
  
• Brandon L. Garrett, “Innocence, Harmless Error, And Federal Wrongful Conviction Law,” 2005
  Wis. L. Rev.
  35 (2005).
  
• Myrna Raeder, “What Does Innocence Have To Do With It?: A Commentary On Wrongful Convictions And Rationality,” 2003
  Mich. St. L. Rev.
  1315 (2003).
  

Now, most of the cases in these law review articles refer to the
least
obnoxious side of evidence manufacturing, which is that some branches of government will on occasion manufacture reality “after the fact” to secure the unjust convictions of those who lost the American justice lottery.

But would any branch of government dare to manufacture reality “before the fact” to achieve likewise unjust objectives? The surprising answer is
yes
. . .

Let’s turn to that next.

Category 2: Manufacturing Reality
Before
The Fact

The “dirty little secret” of government is that on occasion it will not only
frame
people for crimes they did not commit, it will on occasion
create crimes out of thin air
,as Samuel Gross and Barbara O’Brien reported in 2008 in the
Journal of Empirical Legal Studies
, summarizing data also contained in the
Frontline
documentary
LAPD Blues
:
6

We do know about a substantial number of exonerations of innocent defendants who pled guilty and received comparatively light sentences in one particularly disturbing factual context. In the past decade, several systematic programs of police perjury have been uncovered, which ultimately led to exonerations of at least 135 innocent defendants who had been framed for illegal possession of drugs or guns in Los Angeles, Dallas, and Tulia, Texas.
These are not cases in which the wrong person was convicted for a real crime, but ones where the police lied about crimes that had never happened at all.
Most of these innocent drug and gun defendants pled guilty and had been released by the time they were exonerated two to four years later. These cases do demonstrate that some innocent defendants who are not facing the death penalty or very long terms of imprisonment will plead guilty in return for greatly reduced sentences.

Notice the drop. We first started with examples of how a crime can be “pinned” on the innocent. This paragraph now shows us how a “non-crime” can be pinned on the innocent. Can it get any worse? Yes.

Manufacturing reality after the fact to put a person in jail for a crime not committed is one thing — but actually
committing
a
crime
and then attempting to “pin” it on an innocent party is quite another — and doubly sinister.

As you might gather, any evidence of government misconduct of this magnitude would normally be destined for the shredder, but a few accounts and documents detailing these disturbing schemes have miraculously survived.

Some of them have survived because they are not documenting manufactured
crimes
, only manufactured
reality
; however, once we realize that government can manufacture reality, it takes no great leap of the imagination to realize that government can manufacture the “reality” that a crime
they
committed was perpetrated by “X”.

So, let’s begin this journey of discovery by starting with two comparatively benign examples from World War II,
Operation Mincemeat
and Hitler’s Jig.

Operation Mincemeat
was a plan devised by the British to deceive Hitler that the Allies planned to invade Greece and Sardinia instead of Sicily. The method of operation was to make sure that a body with “top secret” Allied war plans washed up on shore; when the Germans read the plans, they would think that they were viewing reality of the real variety, and act accordingly.

To create the illusion of reality, a body first had to be found. The team behind
Operation Mincemeat
charged with finding the body was headed by Lieutenant Commander Ewen Montagu, a Royal Navy intelligence officer:
7

With the help of the renowned pathologist Sir Bernard Spilsbury, Montagu and his team determined what kind of body they needed: a man who appeared to have died at sea by hypothermia and drowning, and then floated ashore after several days. However, finding a usable body seemed almost impossible, as indiscreet inquiries would cause talk, and it was impossible to tell a dead man’s next of kin what the body was wanted for. Under quiet pressure, Bentley Purchase, coroner of St. Pancras District in London, obtained the body of a 34-year old Welsh man named Glyndwr Michael, on the condition that the man’s real identity would never be revealed. The man had died after ingesting rat poison which contained phosphorus. After being ingested, the phosphide reacts with hydrochloric acid in the human stomach, generating phosphine, a highly toxic gas. Coroner Purchase explained, “This dose was not sufficient to kill him outright, and its only effect was so to impair the functioning of the liver that he died a little time afterwards”, leaving few clues to the cause of death. Montagu later claimed the man died from pneumonia, and that the family had been contacted and permission obtained, but none of this was true. The dead man’s parents had died and no known relatives were found.